had insured generally a mixed cargo, obtained a licence to Voyages and trading illegal export 150 barrels of gunpowder, instead of which they insured by the Convoy 300: Chief J. Gibbs held, that the insurance was illegal Acts, &c. only as to the 150 barrels of the excess, but might be sup- limited quantity of prohiported both as to such part of the cargo as required no bited goods, licence, and also as to the 150 barrels, for which the licence the assured was obtained. (o) Lord Ellenborough declared his adhesion the insurance to the same doctrine, in a Nisi Prius case, on the ground that it would be very dangerous, if the introduction of a single article, not specified in the order, were to vacate the licence altogether. (p) In a later case, before Lord Tenterden in the King's Bench, an informality to the mode of obtaining a licence for exporting gunpowder, was held to vitiate the entire insurance on a general cargo, all belonging to the same owner, and of which the gunpowder exported under such informal licence formed part. (q) The ground of this decision was, that the informality in question rendered the licence wholly void, so that the case stood on the same ground as though no licence at all had been procured, and therefore fell within the general principle established in the case of Parkin v. Dick. The following curious case affords a good illustration of the extent to which this principle has been carried by the English courts:-A British ship had been permitted to take out a cargo of arms and gunpowder, on giving a bond, as required by law (r), that the same should be expended in trade on the coast of Africa, where she was bound. An American ship, in pursuance of a previous agreement, made before she sailed, met her in the river Congo, in order to take the arms and gunpowder out of her there, and carry them to America. In order to protect this enterprise, an insurance was effected on the American ship, "at and from the river Congo to Charlestown:" it was held that this insurance was illegal and void, on the ground that the American ship was at the river Congo, in order to violate the laws of the (0) Keir v. Andraade, 6 Taunt. 496. (q) Camelo v. Britten, 4 B. & Ald. 184. (r) 33 G. 3. c. 2. s. 4. exports more, is not void in toto, but only for the excess. Keir v. Andraade, 6 Taunt. 496. But an informality in the mode of procuring such licence vitiates the entire in surance on all the goods belonging to the same owner, whether requiring to be licensed or not. Britten, Camelo v. 4 B. & Ald. 184. Where warlike stores taken out by a British ship under licence were, pursuant to previous shipped on arrangement, board an Ame rican vessel, on the African coast, and in sured on a voyAmerica -this insurance was age thence to held void. Gibson v. Service, 5 Taunt. 433. Voyages and trading illegal by the Convoy Acts, &c. Where the ob ject of a voyage 11 East, 135. Taking out false clearances subjects to penalties, but does not make the voyage illegal. Voyages in contravention of embargo laid on by British government are surances there country where the contract of insurance was made, and sought to be enforced. (s) In the following case a voyage was held legal, because justified by its object, though contravening the strict terms of an order in council: -Goods were insured on a voyage "from London to Helmsberg (a Swedish port), the Sound, and Copenhagen, all or either:" the ship sailed under false clearances for the Swedish port, but with a real destination for Copenhagen, all intercourse with which place was strictly prohibited by certain orders in council then in force; as, however, it was proved, to the satisfaction of the jury, that the real object of the venture was to carry provisions to the British armament, then supposed to be at Copenhagen, and not to defeat the order in council by trading with the enemy: the court held that the voyage was not illegal; they also held that, though the taking out a clearance for a place to which it was not intended to go, subjected the party to a penalty, under the stat. 13 & 14 Car. 2. c. 11. s. 3., yet there was nothing in the act, on the principle already referred to, to make the voyage illegal. (t) The sovereign power of every government has in time of war a clear right to establish, by proclamation or otherwise, an embargo on all ships in any port of his dominions; all illegal, and in- insurances, therefore, effected on any ships, whether the property of foreigners or subjects, which sail in contravention of such embargo, are illegal and void. Thus where the British government in time of war had laid an embargo on all ships sailing with provisions from any port in Ireland, an insurance effected on a neutral (Venetian) ship, in contravention of such embargo, was on this ground held void. (u) on void. Delmada v. Motteux, Park, 505. 8th ed. (s) Gibson v. Service, 5 Taunt. 433. 1 Marshall's Rep. 119. S. C. Gibson v. Mair, ibid. 39. (t) Atkinson v. Abbott, 1 Camp. 535. S. C. 11 East, 135. (u) Delmada v. Motteux, Park on Ins. 505. 8th ed. SECT. III. Insurances on Voyages or Traffic illegal by the ART. 1. Insurances to protect Trading with the Enemy and on Enemy's Property. § 269. The object of every belligerent state in time of war is to inflict on the enemy all the mischief, and deprive him of all the advantage which the law of nations will permit. As one of the main sources of wealth and strength to every mercantile state consists in its maritime commerce, the law of nations permits each belligerent to endeavour, by every effort, to impede and annihilate such commerce, by destroying or making prize of all ships and merchandise, by means of which it is in the course of being carried on; and, upon the same principles, the municipal or common law of every state declares all insurances to be void, by which such ships or merchandise are sought to be protected. We have elsewhere had occasion to advert to the course of decisions by which our courts established that insurances by or on behalf of alien enemies were wholly illegal and void. We have seen it progressively decided that alien enemies could not sue on such contracts in our courts, either by themselves or their agents (v); that such insurances were in themselves illegal, and, therefore, that although effected before the breaking out of hostilities, yet they could not protect an alien enemy against the consequences of British capture after war had broken out (w); that no action, consequently, could be maintained upon them in respect of such loss, or any other that had taken place during hostilities, even after the restoration of peace (x); although, supposing both the policy to have been effected and the loss to have accrued before the commencement of hostilities, the right of the alien enemy to 23. (v) Brandon v. Nesbitt, 6 T. Rep. (x) Furtado v. Rogers, 3 Bos. & Insurances to with the enemy, protect trading and on enemy's property. All insurances on ship or goods of the enemy, in time of war, are void. All insurances by or on behalf of enemies are wholly void. Insurances to protect trading with the enemy, and on enemy's property. Insurances de tect the interest of British subjects in trade carried on with sue upon such policy was only suspended during the continuance of war, and would revive upon its close. (y) In the decisions just referred to the insurance was generally effected by, or on behalf of, alien enemies, to protect signed to pro- their property during war from liability to British capture or other casualties: in these we are now to consider the design was to protect the interest of British subjects, during war, in trade carried on with the enemy without the king's licence. The question, therefore, involved in them was, whether trading with the enemy during war, without licence, was Potts v. Bell, illegal in British subjects. the enemy during war with out licence, are also wholly illegal and void. 8 T. Rep. 548. A British subject, however, if domiciled in a neutral state, has all the pri vileges of neutrality. Bell v. Reid, 1 M. & Sel. 726. The question came before the courts of common law in the case of an insurance effected by, and for, a British subject in time of war, to protect his interest in goods purchased by his agent of an enemy in the enemy's country, and shipped thence for England without a licence. The Court of Common Pleas decided that this insurance was legal (z); but the Court of King's Bench, after two arguments, first by common lawyers, and afterwards by civilians, and on the maturest deliberation, unanimously held, that such insurance was wholly illegal and void. (a) This case, and that of the Hoop, decided by Lord Stowell in the Admiralty Court shortly before it, have established, on a basis which has never since been shaken, the rule, that all trading carried on by the subjects of this country in time of war, without a licence, with the subjects to the country, or by means of the property of the enemy, is wholly illegal; and all insurance to protect such trading absolutely void. As, however, according to principles more fully developed in a former part of this treatise (b), a British subject domiciled in a foreign country becomes, for all commercial purposes, the subject of the foreign state, it follows, and has, on more than one occasion, been so decided in our jurisprudence, that (y) Flindt v. Waters, 15 East, 266. Harman v. Kingston, 3 Camp. 152. Bolton v. Dobree, 2 Camp. 162. (z) Bell v. Gilson, 1 Bos, & Pull. (a) Potts v. Bell, 8 T. Rep. 548. (b) Part I. Chap. IV. Sect. 11. Art. 2. pp. 102, 103. Insurances to protect trading with the enemy, and on enemy's property. if the country where he is so domiciled be a neutral state, he may legally trade even with the enemies of this country, and protect such trading by a policy effected here. (c) He may, also, under similar circumstances, effect a policy on trading carried on in a way which would be illegal for a British subject, but is legalised by treaty for the subjects of the neutral 8 T. Rep. 31. country in which he is domiciled. (d) pro We have seen elsewhere (e) that if a neutral or a British subject continue in time of war to keep up a trading establishment in a hostile state, all his property connected with such hostile firm is liable to British seizure as enemy's property. (f) There seems no doubt that all insurances effected here in time of war by a British subject to protect such perty, would be held wholly illegal and void. Where the underwriter intends to raise the objection that the insurance is void, because effected to cover a trading with the enemy, he must take such objection in the first instance: for, if there be a verdict against him, the courts will not grant him a new trial in order to avoid the contract on this ground. (g) ART. 2. Insurances on Voyages and trading Adventures to hostile Ports. Wilson v. Marryatt, The objection trading with of illegal the enemy must be taken in the first instance. voyages and tures to hostile § 270. All unlicensed trading by British subjects, during Insurances on war, with the subjects, or to the territories, of the enemy, trading advenbeing, as we have seen, illegal, it follows, as a general rule, that all insurances will be void which are designed to protect voyages or trading to hostile ports. In order, however, to avoid a policy on this ground, it must be clearly made out, not only that the port into which the ship sails is hostile, but also, that she was bound with a distinct hostile destination at the time of loss. Thus, it has (c) The Danaöus, cited in 4 Rob. Adm. Rep. 255. Bell v. Reid, and Bell v. Buller, 1 Maule & Sel. 726. The Dos country, flagrante bello. (d) Wilson v. Marryatt, 8 T. Rep. 31. This does not apply to those subjects who migrate into the neutral ports. All insurances on voyages to hostile ports are, generally speaking, illegal. But the ship must be shown to have been sailing with a distinct hostile destination at time of loss. |